No Chance for Federal Ban

After announcing plans to prohibit smoking in schools, public buildings and most restaurants in early December, Germany's ruling coalition rescinded the proposal on constitutional grounds, saying that an outright federal ban could infringe on individual states' rights, according to a report in Germany's business daily Handelsblatt.

A nationwide smoking ban might not survive a challenge from tobacco users in the courts, so the decision to ban smoking will now be up to Germany's 16 federal states, which have extensive rights that cannot be overridden by Berlin. For example, the federal government cannot regulate the smoker's right to light up in local or state government offices, according to Rupert Scholz, a constitutional lawyer in Berlin.

Ban withdrawal draws critics

The rejection of the coalition government's original proposal, drew criticism from politicians who support a smoking ban.

"What we are witnessing is the government bending to the tobacco lobby," said Social Democratic parliamentarian and health expert Karl Lauterbach in the newspaper Frankfurter Rundschau."How can it be that in the rest of Europe, the rights of non-smokers are protected, but our government says that it is not possible in Germany?"

Carola Reimann, a Social Democratic spokeswoman on health issues, insisted that it was legally possible to enforce a federal ban.

"We can and should go ahead with the planned proposal," she told the daily Braunschweiger Zeitung.

But even that met with criticism, as some politicians said the original proposal did not go far enough in protecting non-smokers.

"At first the ruling parties make the illogical rule that smoking would be banned in restaurants, but allowed it in pubs and bars," said Bärbel Höhn, the opposition Green party's deputy leader. "Now they bring up constitutional obstacles. Smoking should be banned in all gastronomical establishments. Period."

Complex constitutional issues

Next week the federal cabinet, with input from the justice and interior ministries, will issue a paper outlining the terms that the states would be required to follow, a government spokesman said Thursday evening.

"A comprehensive smoking ban cannot be put in place without cooperation from the states," the spokesman added. "The constitutional issues are highly complex. We want a constitutionally sound law that protects non-smokers in Germany."

Chancellor Angela Merkel's cabinet, however, can prohibit tobacco consumption in federal agencies and ministries, according to the newspaper Handelsblatt. But it will be up to the individual states to ban smoking in schools, hospitals, public transport, restaurants and elsewhere.

Germany out of step with other European states

Germany is Europe's biggest tobacco market with about 22 million smokers, which is 27 percent of the population, according to the federal statistics office. Several surveys recent have also shown that the majority of Germans favor prohibiting smoking, but politicians remain deeply divided over a comprehensive ban.

France, Italy and England have already passed laws that ban smoking in bars and restaurants, as well as public buildings, putting Germany out of step with its European counterparts.

A further obstacle is that many Germans perceive the right to light up as a cherished personal freedom and that some see the anti-smoking lobby as having been historically tainted by the Nazi hostility to smoking.